Necessity

A general exception under section 81 of the Penal Code

s. 81

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation.It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
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Rationale

Mix of excuse and justification

Suggests that there are two defenses at work here - a fall-back defense e.g. when PD, duress does not succeed We excuse you because of circumstances that you faced (if you dont get duress) at common law --- duress of circumstances; UK law - restricted to threats of death or serious bodily injury; Penal Code no such restriction Core idea: overcoming of As resistance/will

Excusatory necessity:

Justificatory necessity:

We recognize that your action brought about a greater good - As action involves lesser evil than harm threatened Core idea: balancing of harms

Justification or excuse matters: strictness of evaluating actions

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s. 81: justification or excuse?

(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with 20 or 30 passengers on board, unless he changes the course of his vessel, and that, by changing his course he must incur risk of running down a boat C, with only 2 passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C, and in good faith for the purposes of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C, by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.

s. 81: justification or excuse?

(b) A in a great fire pulls down houses in order to prevent the conflagration from spreading. He does this with the intention, in good faith, of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse As act, A is not guilty of the offence.
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Requirements

Threatened harm Response As mental state

Threatened harm

Imminence
Harm is required to be sufficiently imminent (does not require to be instant) Whose perspective? As reasonable perspective (Mistake defense)

No time to get assistance Threat has crystallized - realistic implementation (between just threat and present implementation)
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Proportionality/necessity

Explanation: harm avoided of such a natureas to justify or excuse Implicitly requires proportionality
YMC: suggests this requirement only for justificatory necessity, not for excusatory necessity Can proportionality play a role in excusatory necessity? Role of proportionality in duress

Proportionality/necessity

Necessity

YMC: also suggests there is implicit requirement of necessity

how is this different from proportionality

YMC: difference between

Justificatory necessity: number of possible responses Excusatory necessity: minimum harm necessary (YMC no requirement of proportionality but there is strict requirement of necessity?)

Any excluded responses

No excluded responses (e.g. murder) Can murder ever be a justified response?

Common law: historically excluded

Recall Dudley and Stephens US v Holmes

A was sailor ordered 16 people be thrown overboard (no women, no separation man/wife) Held: A should have first thrown crew overboard, later draw lots Note: Expressly disapproved in Dudley

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Any excluded responses

Case of Re A

J and M co-joined twins question of whether to lawfully operate and separate J likely to survive and M likely to die cause bad heart and lungs it not separated both die parents didnt want operation on religious grounds Held: Operation was an act of necessity to avoid inevitable evil Purpose was to preserve life of J not to kill M Act may be seen as self-defense Act required balancing worthwhileness of operation including the conditions of each twin not balancing one life against another as this contravenes sanctity of life

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Without criminal intention

Criminal intention vs. intention Intention:

A aware is virtually certain to occur

Criminal intention:
As purpose to bring about consequence What is the primary purpose Aim or resolution of mind to produce effect

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Without any fault of negligence

S. 81 illustration (a)
Suggestion that without any fault or negligence refers to prior fault A to be judged according to dangerous situation that he created MR at the point when dangerous situation occurred society wants to encourage A to do that regardless of prior fault but not let him off completely

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PP v Ali Bin Umar

Due to a broken rudder, Ds boat drifted into Malaysian waters. D was charged with carrying tin-ore without permission contrary to the Customs Act (Mysia). Held: The defense of necessity as recognized by English common law succeeded. [W]here a person is able to choose between two courses, one of which involves breaking the criminal law and the other some evil to himself and others of such magnitude that it may be thought to justify the infraction of the criminal law, the court would temper such situation[s] with justice.

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Muhammad Sarwar & Ors v The State

As had built a bund to protect their homes against rising waters. As attacked Vs when the latter tried to dismantle the bund. Sarwar (one of Ds) had shot and killed a V. Held: All the As (excepting Sarwar) were acquitted of murder and attempted murder based on defense of necessity under s 81 of the Penal Code. Sarwar was acquitted of murder based on private defense under s 100 of the Penal Code.
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